The California Department of Housing and Community Development (HCD) released a list of cities and counties that will have to offer qualifying development projects a “by-right” approval process. The list was developed pursuant to SB 35, one of the housing bills passed last year by the State Legislature.

SB 35, by Senator Scott Wiener, operates under the assumption that local processes for permitting multifamily housing developments are the primary reason for the lack of sufficient affordable homes in California. Accordingly, local jurisdictions where construction of new housing units by developers has not met planning goals established through the Regional Housing Needs Allocation (RHNA) process, cities and counties will have to offer a ministerial approval process and may not require a conditional use permit.

Specifically, jurisdictions where construction of housing for above-moderate income households has not kept pace with RHNA goals, are required to offer the ministerial review process for multifamily developments that include at least 10 percent of units affordable to households with incomes less than 80 percent of the area median income. In jurisdictions where construction of housing affordable to households with incomes below 80 percent of the area median income has not kept pace, developments with at least 50 percent affordable units are eligible for ministerial approval. Jurisdictions are also automatically eligible if they do not submit annual housing element progress reports to HCD.

There are broad screening criteria that limit the applicability of SB 35 in counties. First, developments only qualify for SB 35’s process if they are consistent with the underlying zoning of the site and other objective land use criteria. Among other site limitations, qualifying projects must be located in an infill context within an urbanized area or urban cluster, as defined by the US Census Bureau. Projects also cannot be located in the coastal zone, a very high fire hazard severity zone, or a variety of other environmentally-sensitive areas.

In addition to the significant screening requirements for eligible sites, developers will have to weigh whether the additional certainty of a “by-right” approval process is worth the additional costs that compliance with SB 35 requires. In order to qualify for a “by-right” approval process, workers building the project must be paid prevailing wages. Larger projects must also use a skilled and trained workforce, which essentially requires the use of union hiring rules.